ment, then this obligation to be void; otherwise, to remain in full

"When the judgment was rendered before the action stood for trial, the suspension may be granted, as provided in the last section, although no valid defense to the action is shown; and the court shall make such orders, concerning the executions to be issued on the judgment, as shall give to the defendant the same rights of delay he would have had if the judgment had been rendered at proper time."

the

§ 1323. Time for application

"Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions four, five and seven, of Section 5267, must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or a person of unsound mind, and then within two years after removal of such disability. Proceedings for the causes mentioned. in subdivisions three and six of the same section, shall be within three years, and in subdivision nine, within one year after the defendant has notice of the judgment. A void judgment may be vacated at any time, on motion of a party, or any person affected thereby."

2 Rev. Laws 1910, § 5273.

3 Rev. Laws 1910, § 5274.

To vacate a judgment on the ground of fraud, the petition must be filed within two years from the rendition of the judgment, unless the petitioner is under disability. Sanford v. Weeks, 31 P. 1088, 50 Kan. 339; Duphorne v. Mocre. 107 P. 791, 82 Kan. 159.

Where a real estate mortgage is foreclosed against the husband and others, and the land is sold to the judgment creditor for more than enough to satisfy the judgment and costs, and the sale is confirmed, and a sheriff's deed executed to the purchaser, and he sells and conveys the property by warranty deed to another, and afterwards it is ascertained that the title is in the wife, and an additional judgment is rendered that the surplus money shall HON.PL.& PRAC.-82 (1297)

It is reversible error to strike from the files a petition to vacate a judgment on the ground that it was not filed within three days after judgment was rendered, or during the term at which judgment was rendered, or because it was filed in the original action.*

be paid to the wife, and that she shall be barred and estopped from ever claiming any right, title, or interest in or to the property, a motion by the wife, made nine years afterwards, to vacate the judgment, on the ground that the attorney was not authorized to appear for her, should be denied; the wife testifying that the attorney had no authority, and the attorney testifying that he had. O'Flanagan v. Case, 21 P. 96, 41 Kan. 183.

A void judgment may be vacated at any time on motion by a party or other person affected thereby. Wheatland Grain & Lumber Co. v. Dowden, 110 P. 898, 26 Okl. 441; Choi v. Turk, 55 Okl. 499, 154 P. 1000; Nicoll v. Midland Savings & Loan Co. of Denver, 96 P. 744, 21 Okl. 591; Stumpff v. Price (Okl.) 177 P. 109; Caulk v. Lowe (Okl.) 178 P. 101: First Nat. Bank v. Wm. B. Grimes Dry Goods Co., 26 P. 56, 45 Kan. 510; Nicholson v. Midland Savings & Loan Co. of Denver, Colo., 96 P. 747, 21 Okl. 598; Phoenix Bridge Co. v. Street, 60 P. 221, 9 Okl. 422.

A void judgment may be vacated at any time without setting up a meritori ous defense. Wheatland Grain & Lumber Co. v. Dowden, 110 P. 898, 26 Ok!. 441.

A judgment which is irregular, but not void, will not be set aside on a motion filed four years after the judgment was rendered, but will be enforced. School Dist. No. 63 v. Chicago Lumber Co., 21 P. 599, 41 Kan. 618.

Where defendant appeared and participated in the trial of an action, of the subject-matter of which the court had jurisdiction, and judgment was rendered against him, and he afterwards brought error, and his petition was dismissed, he cannot set aside the judgment obtained therein, on motion made several years thereafter, on the ground that it was invalid, since as to him it was res judicata. Manley v. Chandler, 63 P. 298, 10 Kan. App. 577.

District court had jurisdiction of action for mandatory injunctive relief to restrain defendant therein from interfering with plaintiff's possession of land, his improvements and cultivation, and for a writ of possession, and its judgment in plaintiff's favor was not void, and motion to vacate was properly denied. Dickson v. Lowe (Okl.) 163 P. 523.

4 Roberts v. Hope, 39 Okl. 173, 134 P. 434; Rev. Laws 1910, § 5035. Where a motion was filed, during the term at which a judgment was rendered, to vacate the judgment because of its rendition before the action regularly stood for trial, and the motion was continued by order of the court to the next term, it was error for the court to refuse to hear such motion because notice thereof was not served within the first three days of such succeeding term. Babcock Hardware Co. v. Farmers' & Drovers' Bank, 32 P. 377, 50 Kan. 648.

Where petition alleges covenant of warranty and existence of paramount title, and answer admits execution of deed and sets up defensive matter, judgment reciting service and filing of answers and ordering recovery by plaintiffs is not void, and will not be set aside on motion more than three days after rendition on ground that petition does not state cause of action. Kaufman v. Grow, 59 Okl. 193, 158 P. 300.

§ 1324. Applicable to what courts

"The provisions of this article shall apply to all the courts of record of the state, so far as the same may be applicable to the judgments or final orders of such courts."

5 Rev. Laws 1910, § 5275.

(1299)

DIVISION III.-PAYMENT, SATISFACTION, AND DISCHARGE

DIVISION IV.-JUDGMENT LIENS

1348. Statutory regulations-Lien on real estate.

"A judgment rendered against an executor or administrator, in the district court or before a magistrate, upon any claim for money. against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator, and the judge of the county court, and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the judgment must be filed in the county court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment."

§ 1326. Death after verdict

"A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but before judgment is rendered. thereon, is not a lien on the real property of the decedent, but is payable in due course of administration."

§ 1327. For recovery of land

"In all cases where there is a recovery of land or any interest therein, adverse to any warranty deed thereto, the judgment by which such recovery is had shall not be effective or become the basis of an action against previous grantors, other than those who are parties thereto or have been notified in writing of the pendency thereof twenty days before such judgment is entered.” 8 A decree against a mortgagor, who before the institution of the foreclosure proceeding had conveyed his title to a third person, although it be in fraud of creditors, does not foreclose the rights of the grantee if such grantee is not made a party to the proceeding by valid service."

6 Rev. Laws 1910. § 6350.

7 Rev. Laws 1910, § 6352.

8 Rev. Laws 1910, § 1165.

› Harding v. Gillett, 107 P. 665, 25 Okl. 199.